910 F.2d 815 (Fed. Cir. 1990), 90-5007, Hart v. United States

Docket Nº:90-5007.
Citation:910 F.2d 815
Party Name:Jewell M. HART, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant.
Case Date:August 02, 1990
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 815

910 F.2d 815 (Fed. Cir. 1990)

Jewell M. HART, Plaintiff-Appellee,


The UNITED STATES, Defendant-Appellant.

No. 90-5007.

United States Court of Appeals, Federal Circuit

August 2, 1990

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Jewell M. Hart, Hampstead, N.C., pro se.

James M. Kinsella, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., argued for defendant-appellant. With him on the brief were Stuart M. Gerson, Acting Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief was Captain Paul C. Clark, Office of the Judge Advocate Gen., U.S. Air Force, Washington, D.C., of counsel.

Before MARKEY, Circuit Judge, [*] SKELTON, Senior Circuit Judge, and DUPLANTIER, District Judge. [**]

DUPLANTIER, District Judge.

The United States Claims Court decided that this suit for annuity benefits under the Survivor Benefit Plan, 10 U.S.C. Secs. 1447-1455 (1982), filed by a widow more than six years after the death of her military retiree husband, is not barred by the statute of limitations, 28 U.S.C. Sec. 2501 (1988), as to benefits which had become due and payable to her within six years prior to her filing suit, on the ground that it is a "continuing" claim. Hart v. United States, 17 Cl.Ct. 481 (1989). The United States appeals that decision. We reverse.


Jewell M. Hart is the widow of Sergeant Gene Cleon Hart, who retired from active duty with the United States Air Force in 1976. At the time of or after his retirement, Sergeant Hart elected not to participate in the Survivor Benefit Plan (SBP). Sergeant Hart died on October 15, 1980.

Mrs. Hart filed suit on October 18, 1988, seeking to recover SBP annuity benefits allegedly due her since the date of her husband's death. She alleged that the

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government failed to notify her of her husband's decision not to participate in the SBP, as required by 10 U.S.C. Sec. 1448(a)(3)(A). 1

The government moved to dismiss the suit, contending that the claim is barred by the statute of limitations. Plaintiff moved for summary judgment. The Claims Court denied the government's motion in part, holding that the claim for SBP annuity benefits was a "continuing" claim and, therefore, the claim for those benefits accruing within six years of the time suit was filed was not time barred. Thereafter, the court granted plaintiff's motion for summary judgment, except for benefits which accrued more than six years before suit was filed.


The United States Claims Court lacks authority to consider claims and grant relief against the government, absent congressional consent. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976). This consent to suit must be explicit and strictly construed. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980). Consent cannot be implied, but must be unequivocally expressed. United States v...

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